Blogger and author Bob McCarty made a FOIA request to the Army for an Army Handbook entitled "Inside the Wire Threat - Afghanistan." Mr. McCarty has publicized this request in his blog. The handbook was publicized by Gen. John Allen during Senate testimony in March of 2012. The request was eventually referred to the Department of Defense's FOIA Office ("DOD") because the Army believed that it contained Critical Infrastructure Security Information and that information was covered by 10 USC Section 130e, which was created in the 2012 National Defense Authorization Act. This was largely in response to the Milner decision which cut back the use of Exemption 2 for this material.
Under the statute, DOD gave McCarty the opportunity to show why the public interest in the material would outweigh any interests in withholding the material. Instead of responding to DOD, Mr. McCarty merely threw up his hands over the "hoops" he had to jump through and cancelled his request.
James Hogan, the DOD offical who asked Mr. McCarty for his input has stated to the FOIA blog that
"The National Defense Authorization Act (NDAA) for Fiscal Year 2012 created two
DoD-specific Exemption 3 statutes – 10 U.S.C. § 130e, which concerns critical
infrastructure security information, and 10 U.S. C. § 2254a, which concerns data
files of the military flight operations quality assurance system. According to
these statutes, the authority to exempt information from release to the public
is provided to the Secretary of Defense, who may delegate this authority to the
Director of Administration and Management. This authority has been delegated,
and the DoD has published its procedures for exempting this information on the
Defense Freedom of Information Policy Office web site here."
Hogan says they are trying to make the process as transparent as possible and asks for those interested to contact the Department with any comments.
This statutue and its input on the public interest in non-privacy information is relatively novel for the FOIA. All requesters who make requests should really give the DOD input on the information they are asking for under the terms of the statute, otherwise the DOD will be free to just withhold the information. Further, without requester input, no administrative appeals or litigation decisions will be available.